Cameron v. Ontario (Training, Colleges and Universities), 2012 HRTO 1474

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Cameron

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges and Universities

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 27, 2012

Citation: 2012 HRTO 1474

Indexed as: Cameron v. Ontario (Training, Colleges and Universities)

APPEARANCES

Robert Cameron, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges and Universities, Respondent

Melanie Herbin, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services because of a disability.

2In a Case Assessment Direction (“CAD”) dated June 1, 2011 the Tribunal directed that a summary hearing be held by conference call to hear the parties submissions on the question. The hearing was first scheduled to take place on December 8, 2011 but was adjourned at the request of the applicant. See 2011 HRTO 2240. A second date was scheduled for June 8, 2012. Both parties were in attendance at that time.

3The respondent through a program called Second Career provides financial support for persons seeking retraining and a productive return to the workforce. The applicant made an application for funding under this program in August 2010.

4The applicant makes essentially two allegations. First the applicant believes that he was forced to choose between having a surgery he required and funding under the Second Career program for the Fall term in 2010. Secondly the applicant alleges that he was subject to a reprisal in the form of incessant requests for information by the respondents.

5The issues set out above are those over which the Tribunal may have jurisdiction. I note that the applicant appeared to have a significant number of other issues with the Second Career program which, during the course of the Summary Hearing, he suggested repeatedly would be dealt with in the future.

6I find for all of the reasons set out below that this Application should be dismissed in part.

SUMMARY HEARING

7The Tribunal’s Rule 19A provides as follows:

RULE 19A SUMMARY HEARINGS

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

19A.3 When a party requests that an Application be dismissed pursuant to this Rule, it shall deliver to the other parties and file with the Tribunal a Request for Summary Hearing (Form 26), which includes full argument in support of the Request that the Application be dismissed. The party making the Request shall also deliver to the other parties a copy of the Practice Direction: Summary Hearing Requests.

19A.4 A party may respond to the Request for Summary Hearing by completing Form 11, delivering a copy to all parties and filing it with the Tribunal not later than 14 days after the Request for Summary Hearing was delivered.

19A.5 Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.

19A.6 Where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8This resolution of the issue here requires a consideration of both aspects of the Dabic, analysis above. First in respect of the discrimination on the basis of disability the question is whether assuming that the allegations of the applicant are capable of proof would they support a finding that there has been a violation of the Code. As regards the allegation of reprisal the question becomes whether there is any evidence that the alleged conduct of the respondent was intended as a reprisal for his having sought to enforce his rights under the Code.

The Disability Issue

9The Second Career Program is a targeted program intended to assist individuals who have been unemployed for extended periods of time. The criteria for approval include the following:

a. Laid off on or after January 1, 2005, and

i. Still unemployed, or

ii. Took one or more interim jobs to make ends meet and lost that/those job(s), or

iii. Took one or more interim jobs to make ends meet and is still working in that job; or

iv. Still on salary continuance or severance for the job from which they were laid off.

b. Requires skills training for employment in “in-demand” occupations in Ontario.

10Candidates are also scored on a matrix which takes into account amongst other things, the length of the individual’s unemployment, the proposed training and the job market for people with such skills. Candidates are generally required to be available for full time participation in training. The respondent states that if a candidate knows in advance that he or she will not be available for a significant part of the training, options such as delaying the start date of the program or other training options might be discussed.

11The applicant applied for Second Career Funding to complete an e-learning course offered through Niagara College. The program offered by the College would take approximately one year to complete. His application was recommended by one of the third party service providers with whom the Ministry works in administering these programs and was sent to the respondent on August 30, 2010. In his initial application the applicant made no request for accommodation and did not claim to be a person with a disability.

12The applicant had advised the third party service provider that he would be having surgery on August 6, 2010. He then advised them that it had been postponed and would be re-scheduled to a later date. There was no reference anywhere in the material available to the respondent that the applicant required surgery during the first term of the e-learning program and would consequently be unable to engage in full-time studies for a period of time. In particular the respondent states that neither it nor the third party were made aware at the time his application was submitted, of the October 8, 2010 date which the applicant later claimed was the date of his surgery.

13The processing of the applicant’s application for funding was delayed for a period of time for reasons unrelated to the human rights claims. The applicant’s application for funding was approved on September 18, 2010.

14There was apparently a discussion between the applicant and an official of the respondent, Ms. C., about his application on or about September 21, 2010 in which the applicant’s need for a surgery was raised for the first time. The applicant also raised an issue with respect to the length of time he would require to complete the program, which was anticipated to take one year and was funded by the respondent on that basis.

15On September 22, 2010 the applicant wrote to the Ministry setting out his desire to take three courses instead of 5 per semester thereby extending the program by one semester. The applicant apparently believed, based in part on information provided by the colleges in which the courses were being offered, that given the courses he was enrolled in 5 per semester was too heavy a burden. This was a significant point of controversy between the parties but not one that the applicant claims is an element of this Application. The applicant also indicated in this correspondence that he would be having surgery in October and would need a week to recover.

16The need for a week to recover from the surgery was not seen as a problem by the respondent at that time as it represented a relatively small proportion of the training time in the fall semester. Another factor considered was that because it was an e-learning program the Applicant had a degree of flexibility to make up the time missed and finish the semester on time.

17The request to modify his application with a reduced course load raised different issues for the respondent because if the applicant was not a full time student that would have implications for the funding that could be made available to him. Ms. C and the applicant apparently discussed this issue at length over several days. In the end the respondent determined that if the applicant modified his application to reduce the number of courses he would take per term from 5 to 3 he would be entitled to funding for tuition and books but not living expenses. This was communicated to the applicant on September 24, 2010. The applicant appears to have decided not to change his application but did not sign a funding agreement prepared by the respondent.

18In an email to the respondent dated September 29, 2010 the applicant requested an “accommodation on the number and length of courses for my Second Career program.” He indicated that he was facing surgery and he had disabilities related to his ability to complete his work on time. The applicant did not provide any detail about the nature of the disabilities and provided no documentation to support the request. The same day Ms. C wrote to the applicant asking that the applicant provide medical documentation to substantiate the need for accommodation.

19Later the same day the applicant wrote to Ms. C. taking issue with the nature of her requests and indicated that he had already “outlined extensively” his issues. In this email he stated that he had disabilities in his arms and his ear and he would be having surgery in the next two weeks and would need to recuperate for up to 20 days. The applicant does not indicate in this email what the surgery related to. It is not disputed that no medical documentation was ever provided to the respondent to support or clarify the medical claims and the need for the various accommodations.

20The following day, September 30, 2010, Ms. C for the Ministry wrote to the applicant and stated that it would not be approving the Second Career request for the current semester. The reasons for this decision were stated as follows:

You have requested an accommodation to take part time training, and you have shared that your surgery will require 20 days recuperation. The current semester started September 13, 2010 and is 14 weeks in length. You have clearly identified that you have not been able to fully access your class work for the last two weeks and as of this Friday, October 1, 2010 and including your surgery, you will miss a minimum of seven weeks. You would be missing 50% of this semester.

21The correspondence goes on to state that the respondent Ministry would consider a request to start in January 2011 or in another program with another start date but would require further information of the applicant, including, if he was seeking an accommodation in the form of a reduced course load further documentation to support the request. The correspondence also states that the Ministry would need confirmation that the applicant had fully recovered from his surgery as it would not approve funding for a program if it had known in advance that the applicant would be unable to participate in the training program for 20 days.

22The applicant responded to Ms. C the same day and took significant issue with the content and tone of her correspondence which the applicant felt was inappropriate. Much of the applicant’s response deals with the reduced course load issue. The applicant does state that the Ministry was mischaracterizing his accommodation request which was not that he would be off for 20 days; more likely five days but it could be as long as 20.

23Later the same day the applicant emailed a Ms. M in the respondent Ministry and indicated that the surgery was elective and would be cancelled. He indicated at that time that he was prepared to sign the original agreement. Ms. M responded to this email and stated that in light of new information provided in an email to Ms. M the Ministry had a funding agreement to sign that day. The new information the applicant provided was that the surgery was elective and he had re-scheduled it.

24The applicant also alleged at the hearing – there is no reference to it in any of the emails between the parties, which are extensive, or elsewhere in the material – that on or about September 30th 2010 he spoke with Ms. C and explained in detail his medical condition and his need for surgery. He also claimed for the first time that Ms. C said to him that if he had the surgery she would ensure that he did not receive funding from the program or words to that effect.

25I am not satisfied that there is no reasonable prospect that the applicant can establish that the respondent did not accommodate his alleged need for necessary surgery on or about October 8, 2010. Of course it does not follow from this conclusion that the Application is likely to be successful. Given the summary nature of the hearing it is not appropriate to comment in detail on the case, however I would observe that while the respondent did ask for medical documentation from the applicant and received none, it is not clear whether this was in relation to the applicant’s alleged need for surgery and its consequences for his training proposal or whether it was in respect of the larger issue of the applicant request for accommodation in the form of funding for a less than full time course load.

26The respondent also submitted that the applicant was not credible and that I should consider that when assessing whether or not this aspect of his case has no reasonable prospect of success. In the summary hearing process no evidence is called and no assessments of credibility are made. There are evident issue of credibility in this case but those can only be resolved after hearing the evidence of the parties.

The Reprisal Allegation

27The applicant alleges that in, what he describes as, incessantly asking him for information in processing his application for funding under the Second Start Program, the respondent was engaging in a course of conduct intended as a reprisal of his having asserted a Code right to accommodation in September and October in 2010. The nature of a reprisal allegation is somewhat different than many of the Code’s protections in that the applicant must prove on a balance or probabilities that the respondent intended the impugned action to be in retaliation for their having asserted a Code right. This approach was articulated in Noble v. York University 2010 HRTO 878:

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

28There is no evidence that the respondent engaged in any acts intended to be in retaliation for the applicant having asserted his Code rights in the circumstances described above. When asked what his evidence was the applicant could point to none other than that they made numerous requests for information. The allegations on their face do not support an inference that the respondent intended anything other than obtaining the information they believed they needed to process his application. I find that there is no reasonable prospect that the applicant will be able to show that the information requests of the respondent were in retaliation for the applicant having asserted a Code right.

Direction

29The Application is dismissed in part. The remaining allegation that the applicant is or was a person with a disability and required surgery in October 2010, which was not accommodated to the point of undue hardship will proceed to a one day hearing. The Tribunal will issue further directions to the parties with respect to the scheduling of this case and their obligation to disclose documents and witness lists will be issued in due course.

30I am not seized of this case.